Since the 2016 election, the issue of when a business can refuse to serve a customer has become particularly significant. Despite a multitude of news articles and court cases, much remains unclear. For example, can California businesses discriminate against customers for political reasons?
Other states seem to allow it. A New York City bar called The Happiest Hour recently faced a lawsuit by a Trump supporter who claimed that the bar refused to serve him because he was wearing a “Make America Great Again” hat. He argued that the bar had illegally discriminated against him. The New York court threw out the case because New York law does not prohibit political discrimination.
Things are murkier in California. Like many states, California has a law, the Unruh Civil Rights Act, that prohibits businesses from engaging in some kinds of discrimination. But California’s law differs in that it is broader and has been interpreted expansively by courts. The text of the Unruh Act prohibits arbitrary discrimination, including discrimination due to “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status[.]”
Though “political belief” does not appear in the list, political discrimination might still be against the law. California courts have interpreted the Unruh Act to include some characteristics that are not listed. The California Supreme Court in Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991), explained that the Unruh Act applied non-listed groups where the discrimination was “arbitrary” based on “personal characteristics” like race, sex, and religion. It therefore recognized that various California courts had found people with “unconventional dress or physical appearance,” families with children, and minors (under 18 years old), to be protected by the Act. Even so, the Harris court indicated that it was hesitant to extend the list of protected groups further: it cautioned that the Act’s emphasis on the list of protected characteristics would “represent a highly persuasive, if not dispositive, factor” in interpreting the law.
There is little guidance beyond that. Until the court decides more cases, business owners will have to decide for themselves whether political beliefs are like race, sex, and religion, and whether discriminating due to politics is “arbitrary”—and then hope they win in court.
Editor’s Note: if you believe you may be facing any type of race discrimination or other forms of discrimination, reach out to one of our attorneys. With offices in San Anselmo, Oakland, and San Francisco.
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